Page 1
No. 14-1585
________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________________________________
CHARLES T. LEE,
Plaintiff-Appellant,
v.
NORFOLK SOUTHERN RAILWAY CO.,
Defendant-Appellee.
_________________________________________
On Appeal from the United States District Court
for the Western District of North Carolina
__________________________________
BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT
M. PATRICIA SMITH MEGAN E. GUENTHER
Solicitor of Labor Counsel for Whistleblower Programs
JENNIFER S. BRAND RACHEL GOLDBERG
Associate Solicitor Senior Attorney
U.S. Department of Labor
WILLIAM C. LESSER 200 Constitution Avenue, N.W.
Deputy Associate Solicitor Room N-2716
Washington, D.C. 20210
(202) 693-5555
Page 2
TABLE OF CONENTS
Page
STATEMENT OF IDENTITY, INTEREST, AND SOURCE OF
AUTHORITY TO FILE ............................................................................................ 2
STATEMENT OF THE ISSUE ................................................................................. 3
STATEMENT OF THE CASE .................................................................................. 3
A. FRSA and Background Regarding FRSA’s Election of
Remedies Provision ............................................................................... 3
B. Factual Background and Procedural Posture of This Case ................... 7
C. The District Court’s Decision ............................................................... 9
SUMMARY OF ARGUMENT ...............................................................................12
ARGUMENT ...........................................................................................................14
A. An Employee Does Not “Seek Protection Under . . . Another
Provision of Law for the Same Allegedly Unlawful Act of the
Railroad Carrier” When He Pursues a Race Discrimination
Claim ...................................................................................................14
B. Paragraphs (g) and (h) Support a Narrow Interpretation of
Paragraph (f)’s Election of Remedies Provision .................................21
C. The History of FRSA’s Election of Remedies Provision
and Its Underlying Purpose Support a Narrow Reading of
Section 20109(f) ..................................................................................23
CONCLUSION ........................................................................................................28
CERTIFICATE OF COMPLIANCE .......................................................................29
CERTIFICATE OF SERVICE
Page 3
ii
TABLE OF AUTHORITIES
Andrews v. Louisville & Nashville R.R.,
406 U.S. 320 (1972)......................................................................................... 8
Artis v. Norfolk & W. Ry.,
204 F.3d 141 (4th Cir. 2000) .........................................................................20
Battenfield v. BNSF Ry.,
No. 12-cv-213, 2013 WL 1309439
(N.D. Okla. Mar. 26, 2013) ................................................................... 3
Bryant v. Bell Atl. Md., Inc.,
288 F.3d 124 (4th Cir. 2002) .........................................................................18
Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998)......................................................................................... 9
Collins v. Pond Creek Mining Co.,
468 F.3d 213 (4th Cir. 2006) .........................................................................21
Consol. Rail Corp. v. United Transp. Union,
947 F. Supp. 168 (E.D. Pa. 1996) .................................................................... 3
Grimes v. BNSF Ry.,
746 F.3d 184 (5th Cir. 2014) .....................................................................2, 21
Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246 (1994)......................................................................................... 8
Jones v. Southpeak Interactive Corp.,
Br. for Sec’y of Labor as Amicus Curiae in Support of
Plaintiff-Appellee, No. 13-2399 (4th Cir. June 27, 2014) .............................23
Koger v. Norfolk S. Ry.,
No. 1:13-12030, 2014 WL 2778793
(S.D.W. Va. June 19, 2014) .................................................................. 2
Page 4
iii
Cases - Continued
Kruse v. Norfolk S. Ry.,
ARB Case Nos. 12-81 & 12-106, 2014 WL 860729
(Admin. Review Bd. Jan. 28, 2014), petition for review
docketed Norfolk S. Ry. v. Perez, No. 14-3274
(6th Cir. March 28, 2014) .................................................................. 2-3
Lee v. Norfolk S. Ry.,
912 F. Supp. 2d 375 (W.D.N.C. 2012) .................................................... 7-8, 9
Mercier v. Union Pac. R.R. and Koger v. Norfolk S. Ry.
ARB Case Nos. 09-121, 09-101, 2011 WL 4889278
(Admin. Review Bd. Sept. 29, 2011) ..............................................3, 10
Norfolk S. Ry. v. Solis,
915 F. Supp. 2d 32 (D.D.C. 2013) ................................................................... 3
Norman v. Mo. Pac. R.R.,
414 F.2d 73 (8th Cir. 1969) .......................................................................8, 26
Pfeifer v. Union Pac. R.R.,
No. 12-cv-2485, 2014 WL 2573326
(D. Kan. June 9, 2014) .......................................................................... 2
Ratledge v. Norfolk S. Ry.,
No. 1:12-cv-402, 2013 WL 3872793
(E.D. Tenn. July 25, 2013) ................................................. 2, 10, 15, 27
Ray v. Union Pac. R.R.,
971 F. Supp. 2d 869 (S.D. Iowa 2013) ............................................... 2, 10, 15
Rayner v. Smirl,
873 F.2d 60 (4th Cir. 1989) ...................................................... 4, 6, 20, 26, 27
Reed v. Norfolk S. Ry.,
740 F.3d 420 (7th Cir. 2014) ................................................................. passim
Page 5
iv
Cases - Continued
Reed v. Norfolk S. Ry.,
No. 12-cv-873, 2013 WL 1791694
(N.D. Ill. April 26, 2013) ....................................................................10
Sereda v. Burlington N. Santa Fe R.R.,
No. 4:03-cv-10431, 2005 WL 5892133
(S.D. Iowa Mar. 17, 2005) ............................................................ 19-20
Union Pac. R.R. v. Bhd. of Locomotive Eng’rs & Trainmen,
558 U.S. 67 (2009)........................................................................................... 4
Statutes:
42 U.S.C. 1981 ................................................................................................. passim
Americans with Disabilities Act,
42 U.S.C. 12101 et seq ..................................................................................23
Civil Rights Act of 1964, Title VII,
42 U.S.C. 2000e et seq............................................................. 8, 18, 23, 25-26
Federal Employers’ Liability Act,
45 U.S.C. 51 et seq. ......................................................................................... 3
Federal Railroad Safety Act of 1970,
49 U.S.C. 20101 et seq.
49 U.S.C. 20101 .............................................................................................26
49 U.S.C. 20109 ..................................................................................... passim
49 U.S.C. 20109(a) .................................................................................. 16-17
49 U.S.C. 20109(b) .................................................................................. 16-17
49 U.S.C. 20109(d) .......................................................................................... 2
49 U.S.C. 20109(d)(1) ..................................................................................... 6
49 U.S.C. 20109(d)(2) ..................................................................................... 6
49 U.S.C. 20109(d)(2)(A) ................................................................................ 7
49 U.S.C. 20109(d)(3) .................................................................................7, 9
49 U.S.C. 20109(d)(4) ..................................................................................... 7
49 U.S.C. 20109(f)................................................................................. passim
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v
Statutes - Continued
49 U.S.C. 20109(g) ................................................................................ passim
49 U.S.C. 20109(h) ................................................................................ passim
49 U.S.C. 20109(c) (2005), amended by Implementing
Recommendations of the 9/11 Commission Act of 2007 ............. 19-20
45 U.S.C. 411, amended by 49 U.S.C. 20109 ................................................. 5
Federal Railroad Safety Act,
Pub. L. No. 103-272, 108 Stat. 867 (1994) .................................................... 5
Federal Railroad Safety Authorization Act of 1980,
Pub. L. No. 96-423, § 10, 94 Stat. 1811,
reprinted in 1980 U.S.C.C.A.N. 3830 (amended 2007) .............................. 3-4
Section 212(c)(1), 94 Stat. 1815............................................................ 4
Section 212(d), 94 Stat. 1815 ................................................. 4-5, 23-24
Implementing Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, § 1521, 121 Stat. 266, 444 .............................................. 5
Section 20109(a)(4), 121 Stat. 445
(codified at 49 U.S.C. 20109(a)(4)) ............................................ 5
Section 20109(c)(1), 121 Stat. 446
(codified at 49 U.S.C. 20109(d)(1)) ............................................ 5
Section 20109(e), (f), (g), 121 Stat. 447
(codified at 49 U.S.C. 20109(f), (g), (h)) .................................... 5
National Transit Systems Security Act,
6 U.S.C. 1142 .................................................................................................16
6 U.S.C. 1142(e) ............................................................................................20
Occupational Safety and Health Act,
Section 11(c), 29 U.S.C. 660(c).............................................. 14-15, 16, 25-26
Railway Labor Act,
45 U.S.C. 151 et seq. ....................................................................................... 4
45 U.S.C. 153 First (i). .................................................................................... 4
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vi
Statutes - Continued
Sarbanes Oxley Act of 2002,
18 U.S.C. 1514A. ...........................................................................................23
Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century, 49 U.S.C. 42121 et seq.
49 U.S.C. 42121 .............................................................................................17
49 U.S.C. 42121(b)(2)(A) ................................................................................ 7
49 U.S.C. 42121(b)(2)(B)(iii) ........................................................................17
49 U.S.C. 42121(b)(2)(B)(iv) ........................................................................17
Code of Federal Regulations:
29 C.F.R. 1601.8 ............................................................................................23
29 C.F.R. 1601.12 ..........................................................................................23
29 C.F.R. 1601.15 ..........................................................................................23
29 C.F.R. 1982.103 ....................................................................................6, 23
29 C.F.R. 1982.104 ....................................................................................6, 23
29 C.F.R. 1982.105 .......................................................................................... 6
29 C.F.R. 1982.106(a) ..................................................................................... 7
29 C.F.R. 1982.110(a) ..................................................................................... 7
29 C.F.R. 1982.112(a) ..................................................................................... 7
29 C.F.R. 1982.112(b) ..................................................................................... 7
Other Authorities:
25 Am. Jur. 2d, Election of Remedies § 3 ......................................................... 20-21
126 Cong. Rec. 26,532 (1980) (statement of Rep. James Florio) ...........................25
Black’s Law Dictionary (9th Ed. 2009) ...................................................................20
Federal Rule of Appellate Procedure 29(a) ............................................................... 1
H.R. Conf. Rep. No. 110-259 (2007), reprinted in
2007 U.S.C.C.A.N. 119, 2007 WL 2162339 .............................................6, 27
Page 8
vii
Other Authorities - Continued
H.R. Rep. No. 96-1025 (1980),
reprinted in 1980 U.S.C.C.A.N. 3830, 1980 WL 13014 ........................ 26, 27
Secretary of Labor’s Order No. 1-2012 (Jan. 18, 2012),
77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan. 25, 2012) ............................... 6
Secretary of Labor’s Order No. 02-2012 (Oct. 19, 2012),
77 Fed. Reg. 69378-01, 2012 WL 5561513 (Nov. 16, 2012) ......................... 7
Page 9
No. 14-1585
________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________________________________
CHARLES T. LEE,
Plaintiff-Appellant,
v.
NORFOLK SOUTHERN RAILWAY CO.,
Defendant-Appellee.
_________________________________________
On Appeal from the United States District Court
for the Western District of North Carolina
__________________________________
BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT
__________________________________________________
Pursuant to Federal Rule of Appellate Procedure 29(a), the Secretary of
Labor (“Secretary”) submits this brief as amicus curiae in support of Plaintiff-
Appellant. For the reasons set forth below, the district court erred in concluding
that an employee’s pursuit of a statutory claim under 42 U.S.C. 1981 for racial
discrimination is an election of remedies under the Federal Railroad Safety Act’s
(“FRSA”) election of remedies provision, 49 U.S.C. 20109(f), that bars the
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2
employee from subsequently seeking relief under FRSA’s whistleblower
protection provision.
STATEMENT OF IDENTITY, INTEREST,
AND SOURCE OF AUTHORITY TO FILE
The Secretary has a strong interest in the interpretation of the whistleblower
provision of FRSA, 49 U.S.C. 20109, because he administers and enforces the
statute, and adjudicates FRSA whistleblower complaints brought by employees of
railroad carriers. See 49 U.S.C. 20109(d). Norfolk Southern Railway Company
(“Norfolk Southern”) contends that FRSA’s election of remedies provision bars a
railroad employee from pursuing a FRSA whistleblower complaint if he already
pursued a statutory claim for racial discrimination. This case is the first in which a
court of appeals will directly address whether FRSA’s election of remedies
provision applies to statutory employment discrimination claims unrelated to
whistleblowing such as a race-discrimination claim under 42 U.S.C. 1981.1
1 Two circuit courts of appeals, numerous district courts, and the Secretary have all
addressed the related issue of whether FRSA’s election of remedies provision bars
an employee from pursuing a FRSA whistleblower complaint if the employee has
previously pursued of arbitration related to the same adverse action under the
employee’s collective bargaining agreement (“CBA”). They all concluded that an
arbitration to enforce rights under a CBA is not an election of remedies under
section 20109(f). See Grimes v. BNSF Ry., 746 F.3d 184 (5th Cir. 2014) (per
curiam); Reed v. Norfolk S. Ry., 740 F.3d 420 (7th Cir. 2014); Koger v. Norfolk S.
Ry., No. 1:13-12030, 2014 WL 2778793 (S.D.W. Va. June 19, 2014); Pfeifer v.
Union Pac. R.R., No. 12-cv-2485, 2014 WL 2573326 (D. Kan. June 9, 2014); Ray
v. Union Pac. R.R., 971 F. Supp. 2d 869 (S.D. Iowa 2013); Ratledge v. Norfolk S.
Ry., No. 1:12-cv-402, 2013 WL 3872793 (E.D. Tenn. July 25, 2013); Kruse v.
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3
STATEMENT OF THE ISSUE
Whether 49 U.S.C. 20109(f) precludes an employee from pursuing a FRSA
whistleblower cause of action when the employee has already filed a federal
statutory cause of action under 42 U.S.C. 1981 for racial discrimination in
employment.
STATEMENT OF THE CASE
A. FRSA and Background Regarding FRSA’s Election of Remedies Provision
In 1970, Congress enacted FRSA to promote safety in railroad operations.
See 49 U.S.C. 20101 et seq. After FRSA’s passage, Congress noted that railroad
employees “who complained about safety conditions often suffered harassment,
retaliation, and even dismissal.” Consol. Rail Corp. v. United Transp. Union, 947
F. Supp. 168, 171 (E.D. Pa. 1996) (citing Federal Railroad Safety Authorization
Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811, reprinted in 1980
Norfolk S. Ry., ARB Case Nos. 12-81 & 12-106, 2014 WL 860729 (Admin.
Review Bd. Jan. 28, 2014), petition for review docketed Norfolk S. Ry. v. Perez,
No. 14-3274 (6th Cir. March 28, 2014); Mercier v. Union Pac. R.R. and Koger v.
Norfolk S. Ry., ARB Case Nos. 09-121, 09-101, 2011 WL 4889278 (Admin.
Review Bd. Sept. 29, 2011) (ARB consolidated cases for review) (“Mercier”); cf.
Battenfield v. BNSF Ry., No. 12-cv-213, 2013 WL 1309439 (N.D. Okla. Mar. 26,
2013) (examining section 20109(f) and permitting plaintiff to add FRSA retaliation
claim to his lawsuit alleging a violation of the Federal Employers’ Liability Act
despite having challenged his termination under his CBA); Norfolk S. Ry. v. Solis,
915 F. Supp. 2d 32, 43-45 (D.D.C. 2013) (concluding that court did not have
jurisdiction to review the Administrative Review Board’s (“ARB”) Mercier
decision because the ARB’s statutory interpretation was, at a minimum, a colorable
interpretation of FRSA’s election of remedies provision).
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4
U.S.C.C.A.N. 3830, 3832). To protect these employees, Congress amended FRSA
in 1980 to prohibit railroads from retaliating against employees who provided
information about violations of federal railroad safety laws or refused to work
under hazardous conditions. See Federal Railroad Safety Authorization Act of
1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811 (amended 2007). FRSA required
that retaliation complaints be resolved following the procedures for resolution of
CBA disputes under the Railway Labor Act (“RLA”), 45 U.S.C. 151 et seq. See
Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, sec.
212(c)(1); see also Rayner v. Smirl, 873 F.2d 60, 64 (4th Cir. 1989).2 The 1980
amendments also included an election of remedies provision, which stated:
Whenever an employee of a railroad is afforded protection under this
section and under any other provision of law in connection with the
same allegedly unlawful act of an employer, if such employee seeks
protection he must elect either to seek relief pursuant to this section or
pursuant to such other provision of law.
2 The RLA mandates that disputes requiring the application or interpretation of a
CBA must first be handled according to the internal grievance procedures specified
in the CBA. See Union Pac. R.R. v. Bhd. of Locomotive Eng’rs & Trainmen, 558
U.S. 67, 72-73 (2009) (citing 45 U.S.C. 153 First (i)). If the employee or the
railroad seeks review of the railroad’s decision on the employee’s grievance, the
RLA requires that the appealing party do so through arbitration before the National
Railroad Adjustment Board or a Public Law Board established by the railroad and
union. See 45 U.S.C. 153 First (i).
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5
Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, sec.
212(d).3
In 2007, Congress again amended FRSA to bolster the protections of
employees. First, the amendments expanded the protected acts of employees. See
Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No.
110-53, § 1521, sec. 20109(a)(4), 121 Stat. 266, 444 (codified at 49 U.S.C.
20109(a)(4)). Second, Congress eliminated the requirement of resolving FRSA
complaints through the RLA’s dispute-resolution procedures and instead
transferred authority to investigate and adjudicate these complaints to the
Secretary. See id. at § 1521, sec. 20109(c)(1), 121 Stat. 446 (codified at 49 U.S.C.
20109(d)(1)). Third, Congress retained the election of remedies provision without
modification, but added two new provisions that specified that nothing in section
20109 of FRSA preempted or diminished other rights of employees and that the
rights provided by FRSA could not be waived. See id. at § 1521, sec. 20109(e),
(f), (g), 121 Stat. 447 (codified at 49 U.S.C. 20109(f), (g), (h)). Thus, FRSA now
states:
(f) ELECTION OF REMEDIES.—An employee may not seek
protection under both this section and another provision of law for the
same allegedly unlawful act of the railroad carrier.
3 In 1994, FRSA’s whistleblower provision was re-designated from 45 U.S.C. 411
to 49 U.S.C 20109, and the language in the election of remedies provision was
modified slightly (to its current form), but this modification was not intended as a
substantive change. See Pub. L. No. 103-272, 108 Stat. 867 (1994).
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6
(g) NO PREEMPTION.—Nothing in this section preempts or
diminishes any other safeguards against discrimination, demotion,
discharge, suspension, threats, harassment, reprimand, retaliation, or
any other manner of discrimination provided by Federal or State law.
(h) RIGHTS RETAINED BY EMPLOYEE.—Nothing in this section
shall be deemed to diminish the rights, privileges, or remedies of any
employee under any Federal or State law or under any collective
bargaining agreement. The rights and remedies in this section may
not be waived by any agreement, policy, form, or condition of
employment.
49 U.S.C. 20109(f), (g), (h).4 The 2007 amendments aimed to “enhance[]
administrative and civil remedies for employees” and “ensure that employees can
report their concerns without the fear of possible retaliation or discrimination from
employers.” H.R. Conf. Rep. No. 110-259, at 348 (2007), reprinted in 2007
U.S.C.C.A.N. 119, 180-81, 2007 WL 2162339.
To pursue a FRSA whistleblower complaint, an employee must file a
complaint with the Occupational Safety and Health Administration (“OSHA”),
which investigates the complaint and issues findings and a preliminary order. See
49 U.S.C. 20109(d)(1), (2); 29 C.F.R. 1982.103-.105; Secretary’s Order No. 1-
2012 (Jan. 18, 2012), 77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan. 25, 2012)
(delegating authority to OSHA to conduct investigations under FRSA). Either the
employee or the railroad may object to OSHA’s findings and preliminary order and
4 Before the 2007 amendments, FRSA’s whistleblower protection provision
preempted state law claims for retaliatory discharge. See, e.g., Rayner, 873 F.2d at
65.
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7
seek a hearing before a Department of Labor Administrative Law Judge (“ALJ”).
See 49 U.S.C. 20109(d)(2)(A), incorporating the procedures in 49 U.S.C.
42121(b)(2)(A); 29 C.F.R. 1982.106(a). Either party may seek review of an ALJ
decision by the ARB, which issues the Secretary’s final order on a FRSA
complaint. See 29 C.F.R. 1982.110(a); Secretary’s Order No. 02-2012 (Oct. 19,
2012), 77 Fed. Reg. 69378-01, 2012 WL 5561513 (Nov. 16, 2012). Final orders of
the Secretary are reviewable only in the U.S. courts of appeals under the standards
in the Administrative Procedure Act. See 49 U.S.C. 20109(d)(4); 29 C.F.R.
1982.112(a), (b).
In addition, 49 U.S.C. 20109(d)(3), which provided the district court’s
jurisdiction for Lee’s FRSA claim, allows an employee to bring his FRSA
whistleblower complaint in U.S. district court “if the Secretary of Labor has not
issued a final decision within 210 days after the filing of the complaint and if the
delay is not due to the bad faith of the employee.”
B. Factual Background and Procedural Posture of This Case
Lee works for Norfolk Southern as a carman; his duties include inspecting
and tagging for repair railroad cars and locomotives. See App. 612-14. On
September 21, 2011, Lee filed a lawsuit in the District Court for the Western
District of North Carolina under 42 U.S.C. 1981 asserting an action for
employment discrimination based upon race (“First Lawsuit”). See App. 615; Lee
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8
v. Norfolk S. Ry., 912 F. Supp. 2d 375 (W.D.N.C. 2012).5 Lee alleged that Norfolk
Southern discriminated against him based on his race in his pay, opportunities for
training and promotion, seniority, and imposing a six-month suspension for
drinking alcohol while on duty. See 912 F. Supp. 2d at 377, 379. On November
14, 2011, while Lee’s First Lawsuit was pending, Lee filed a FRSA whistleblower
retaliation complaint with OSHA. See App. 615.
On December 12, 2012, the district court in Lee’s First Lawsuit granted
summary judgment to Norfolk Southern and dismissed the case. See 912 F. Supp.
2d at 375. The district court concluded that Lee’s section 1981 claims relating to
pay rates, training, promotions, seniority, and the six-month suspension for
drinking alcohol while on duty were preempted by the RLA because they required
interpreting Lee’s CBA. See id. at 380.6 The court further concluded that Lee’s
5 Section 1981 makes it unlawful to deny to a person the right to make and enforce
contracts and the right to enjoy the full and equal benefit of all laws based on the
person’s race. See 42 U.S.C. 1981.
6 The RLA provides the exclusive procedure for resolving any dispute requiring the
application or interpretation of a CBA and therefore preempts other causes of
action that require applying or interpreting the CBA. See Andrews v. Louisville &
Nashville R.R., 406 U.S. 320, 324 (1972) (the RLA preempted state law wrongful
discharge claim that required applying or interpreting a CBA). By contrast, claims
that are independent of a CBA and that do not require the interpretation or
application of a CBA are not preempted by the RLA and may be brought in other
forums. See, e.g., Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 257-59, 266
(1994) (claims under state law did not require interpretation of the CBA, and
therefore were not preempted by the RLA); Norman v. Mo. Pac. R.R., 414 F.2d 73,
82-83 (8th Cir. 1969) (racial discrimination claim under Title VII was not
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9
section 1981 claims of racial discrimination based on harassment by co-workers
and supervisors failed because while a reasonable jury could find Lee was harassed
by supervisors and coworkers because of his race, Lee had not presented sufficient
evidence to hold Norfolk Southern vicariously liable for the harassment. See id. at
383-87 (applying defense under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998), and granting summary judgment to Norfolk Southern).
In his FRSA action then pending with OSHA, Lee exercised his right to file
a de novo action in district court pursuant to 49 U.S.C. 20109(d)(3) by filing his
FRSA complaint in this action on January 8, 2013. See App. 9-14. In his FRSA
complaint, Lee claims that Norfolk Southern retaliated against him for excessive
tagging of railroad cars as needing repair. See App. 614-15. The retaliatory acts
that Lee complained of were denial of proper pay, failure to provide training, and
the six-month suspension for drinking alcohol while on duty. See App. 615, 623.
C. The District Court’s Decision
On May 20, 2014, the district court in this action granted Norfolk Southern’s
motion for summary judgment, concluding that Lee’s First Lawsuit for racial
discrimination under 42 U.S.C. 1981 was an election of remedies under section
20109(f) that barred Lee’s subsequent FRSA whistleblower action. The court
noted that FRSA’s election of remedies provision contains four elements: (1) an
preempted by the RLA because the RLA is not set up to remedy racial
discrimination in employment practices).
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10
employee; (2) may not seek protection; (3) under FRSA and another provision of
law; (4) for the same allegedly unlawful act of the railroad carrier. See App. 623.
The court commented that the first, second, and fourth elements were not disputed
and the case therefore turned on the question of whether Lee’s First Lawsuit
constituted an action under “another provision of law.” See App. 623.7
While the court acknowledged the case law treating an employee’s pursuit of
an arbitration to redress CBA violations as outside the scope of FRSA’s election of
remedies provision, the court concluded that these cases are “completely
inapplicable here” because Lee did not seek redress through an arbitration under
his CBA. App. 630 (citing Ray, 971 F. Supp. 2d 869; Reed v. Norfolk S. Ry., No.
12-cv-873, 2013 WL 1791694 (N.D. Ill. April 26, 2013);8 Ratledge, 2013 WL
3872793; Mercier, 2011 WL 4889278). Instead, Lee filed the First Lawsuit,
seeking protection under section 1981 for racial discrimination, which the court
concluded was “another provision of law.” See App. 630.
The court rejected Lee’s argument that the election of remedies provision
should be construed narrowly. See App. 630-32. Lee had argued, relying on
7 This is an inaccurate statement of Lee’s position before the district court. Lee
explicitly argued that his racial discrimination claim was not based on the same
unlawful act as his FRSA whistleblower claim and continues to pursue that
argument on appeal. See App. 554; Appellant’s Br. 47-48.
8 The district court below cited the district court decision in Reed rather than the
Seventh Circuit’s Reed decision, which was issued on January 14, 2014.
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Ratledge, that the term “another” in the election of remedies provision implies that
the precluded action must be similar in kind to section 20109 and a claim under
section 1981 is not similar in kind. See App. 630-31. The court concluded that
Ratledge did not support Lee’s narrow interpretation of the provision because, by
interpreting the statutory language to require that the other provision of law and
FRSA’s whistleblower provision be “similar in kind,” Ratledge meant that the
provisions of law must be similar in the type of remedies they provided.
According to the court, Ratledge distinguished between legal remedies and
contractual CBA remedies as not similar in kind. See App. 631-32. Because Lee’s
section 1981 claim and his FRSA claim both provided legal remedies as opposed
to contractual remedies, the court concluded, Ratledge was inapplicable. See App.
632. Lee had also argued that section 20109 and section 1981 were not similar in
kind because they addressed different wrongs. The court rejected that argument,
reasoning that such an interpretation would render 20109(f) null because “every
cause of action necessarily targets a different wrong.” App. 632.
Lastly, the court rejected Lee’s argument that applying the election of
remedies in this case would violate paragraphs (g) and (h), which expressly
preserved Lee’s right to bring a section 1981 claim without barring him from also
seeking redress under FRSA . See App. 633-35. The court concluded that Lee had
pursued his anti-discrimination rights in the First Lawsuit, and therefore his rights
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12
under section 1981 had not been diminished. See App. 633. The effect of section
20109(f) in conjunction with paragraphs (g) and (h) was, according to the court,
merely to direct an employee to bring a FRSA claim first. See App. 633. In the
district court’s view, paragraphs (g) and (h) preserve an employee’s right to pursue
another statutory discrimination claim by permitting him to pursue such claim after
he pursues a FRSA whistleblower claim. See App. 626-27, 633.
SUMMARY OF ARGUMENT
An employee does not “seek protection under both this section and another
provision of law for the same allegedly unlawful act of the railroad carrier” within
the meaning of section 20109(f) when the employee seeks protection under a
statute prohibiting racial discrimination in employment and later seeks protection
against retaliation for whistleblowing protected under FRSA. Section 20109(f)
requires that the other provision of law under which an employee seeks protection
be a statute that provides substantive whistleblower protections similar to those
provided by FRSA’s whistleblower provision.
An employee who seeks protection under FRSA is seeking protection from
retaliation for having engaged in whistleblowing related to railroad safety or
security. Properly read in context, an employee who seeks protection under
another provision of law for the same allegedly unlawful act is an employee who
seeks protection under another statute from retaliation for having engaged in the
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13
same conduct, i.e., blowing the whistle on the same railroad safety or security
concerns that FRSA protects.
The text of section 20109 provides multiple indicators that this narrow
reading of the provision is the correct one. First, reading section 20109(f) as a
whole, the provision requires similarity between FRSA and the other provision
under which the employee seeks protection. This similarity requirement is
reinforced by section 20109(f)’s reference to “the same allegedly unlawful act,”
which by contrast to other subsections of section 20109 refers not just to an
adverse action (such as a suspension or discharge) but also to the alleged reason for
the action, i.e., retaliation for whistleblowing related to safety or security. The title
of section 20109(f) (“Election of remedies”), sections 20109(g) and (h), which
indicate Congress’ intent not to diminish the rights of railroad employee’s under
other anti-discrimination statutes, and the legislative history and context of section
20109 further confirm that this reading is correct.
Section 1981 does not provide whistleblower protection comparable to that
provided by FRSA. Section 1981 protects against racial discrimination in
contracts and the application of all laws; the unlawful act it protects against is
racial discrimination. An employee seeking protection for racial discrimination
under section 1981 is not “seek[ing] protection” under “another provision of law”
for the “same allegedly unlawful act” within the meaning of section 20109(f).
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14
Thus, a railroad employee who brings a claim for race discrimination under section
1981 can also subsequently bring a claim under FRSA that the railroad retaliated
against him for blowing the whistle on railroad safety violations.
ARGUMENT
A. An Employee Does Not “Seek Protection Under . . . Another Provision of
Law for the Same Allegedly Unlawful Act of the Railroad Carrier” When
He Pursues a Race Discrimination Claim.
Section 20109(f) requires that the other “provision of law” under which an
employee “seek[s] protection” be a statute that provides substantive protections
comparable to those provided by FRSA. See Reed v. Norfolk S. Ry., 740 F.3d 420,
424-25 (7th Cir. 2014). The election of remedies provision states that “an
employee may not seek protection under both this section and another provision of
law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C.
20109(f). Seeking protection under “this section” (i.e., 49 U.S.C. 20109) means
bringing a claim based on FRSA’s substantive whistleblower protections. See
Reed, 740 F.3d at 424-25. Therefore, as the Seventh Circuit concluded, “[t]o seek
protection under another provision of law must mean something similar: to bring a
claim founded on a comparable substantive protection.” Id. at 425 (emphasis
added). For example, a claim of retaliation for reporting safety concerns or
workplace injuries under the Occupational Safety and Health Act (“OSH Act”), 29
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15
U.S.C. 660(c), would be a claim founded on a comparable substantive protection.
See Reed, 740 F.3d at 425.
As the Seventh Circuit explained, and as other courts have agreed, a contrary
interpretation shears the words in the election of remedies provision from their
context. See id. at 424-25; Ratledge v. Norfolk S. Ry., No. 1:12-cv-402, 2013 WL
3872793, at *12 (E.D. Tenn. July 25, 2013) (the language “another provision of
law” in FRSA’s election of remedies provision indicates that the other provision of
law “should be similar in kind to § 20109”); see also Ray v. Union Pac. R.R., 971
F. Supp. 2d 869, 880-81 (S.D. Iowa 2013) (finding Ratledge’s statutory analysis
compelling).9 “The election-of-remedies provision only bars railroad employees
from seeking duplicative relief under overlapping antiretaliation or whistleblower
statutes[.]” Reed, 740 F.2d at 426 (emphasis added). Thus, to preclude a FRSA
whistleblower action under the election of remedies provision, the other provision
9 The district court below erred in concluding that Ratledge’s interpretation of the
phrase “another provision of law” supported the conclusion that Lee’s section 1981
racial discrimination claim was an election of remedies. See App. 632-32. While
Ratledge interpreted paragraph (f)’s language as requiring that the other provision
of law be similar in kind to section 20109 and concluded that contractual rights are
not similar in kind to FRSA’s substantive rights, see 2013 WL 3872793 at *12,
nothing in the Ratledge decision can be read to conclude that a statute that provides
any type of substantive right is similar in kind to FRSA.
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16
of law under which an employee seeks protection must provide protection for
whistleblowing activity similar to that covered by FRSA.10
The requirement that the election of remedies provision applies only to
actions in which an employee seeks protection for “the same allegedly unlawful
act” further shows that FRSA’s election of remedies provision is meant to bar a
cause of action under FRSA by an employee who has already pursued a cause of
action under another statute that protects against unlawful acts of retaliation for
safety- or security-related whistleblowing. An adverse action by a railroad against
an employee is not, on its own, an unlawful act under FRSA’s whistleblower
provision. An adverse action is unlawful under FRSA only if it is, at least in part,
in retaliation for the employee having engaged in a safety- or security-related
whistleblower activity. FRSA’s statutory language distinguishes between an
adverse action and an “allegedly unlawful act.” FRSA makes it unlawful to
“discharge, demote, suspend, reprimand, or in any other way discriminate against
an employee” only if such action is due, in whole or in part, to having engaged in
10
The election of remedies provision is not rendered null by this interpretation; it
applies to other whistleblower protection statutes, such as the OSH Act, the
National Transit Systems Security Act, 6 U.S.C. 1142, and state whistleblower
protection statutes that provide protection against retaliation for the same types of
safety- or security-related whistleblowing addressed in FRSA.
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17
activities protected by the Act. 49 U.S.C. 20109(a), (b).11
Because FRSA’s
election of remedies provision applies only when an employee seeks protection for
the same allegedly unlawful act that gives rise to the FRSA whistleblower cause of
action, the unlawful act for which an employee seeks protection under another
provision of law within the meaning of section 20109(f) must similarly be a
retaliatory adverse action taken against the employee, at least in part, because of
the employee’s protected whistleblower activity.
While section 1981 is a statute and therefore is a provision of law as a
general matter, an employee who files a section 1981 claim is not “seek[ing]
protection under . . . another provision of law for the same allegedly unlawful act
of the railroad carrier” within the meaning of section 20109(f). Section 1981’s
protection against racial discrimination in employment does not provide
substantive protection comparable to that provided by FRSA, which protects
11
The distinction between an adverse action and an unlawful act is further
illustrated by FRSA’s distinct use of the terms “unfavorable personnel action” (i.e.,
adverse action) and “violation” (i.e., unlawful act). Under the burdens of proof
applicable to retaliation claims under FRSA, which incorporates the rules,
procedures, and burdens of proof from 49 U.S.C. 42121, “[t]he Secretary may
determine that a violation . . . has occurred only if” the employee demonstrates that
protected conduct “was a contributing factor in the unfavorable personnel action
alleged in the complaint.” 49 U.S.C. 42121(b)(2)(B)(iii) (emphases added). The
Secretary may not order relief “if the employer demonstrates by clear and
convincing evidence that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.” 49 U.S.C. 42121(b)(2)(B)(iv)
(emphasis added). As this language demonstrates, proof that an adverse action
occurred is only one of several elements that an employee must show to establish
that the adverse action is an unlawful act under FRSA.
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18
against the retaliatory treatment of an employee due to the employee having raised
a safety or security concern. The unlawful act for which an employee seeks
protection under section 1981 is the employer’s discriminatory treatment of the
employee based on the employee’s race.
Just as an adverse action is not, on its own, unlawful under FRSA, an
adverse action is not, on its own, unlawful under section 1981. An adverse action
is just one of several elements that an employee must show to establish that the
action was unlawful under section 1981. See Bryant v. Bell Atl. Md., Inc., 288 F.3d
124, 133 & n.7 (4th Cir. 2002) (section 1981, which has the same elements as Title
VII discrimination claims, requires an employee to show that he is a member of a
protected class, he was qualified for his job and his job performance was
satisfactory, some adverse action was taken against him, and other employees who
are not members of the protected class were treated differently). Thus, the
unlawful act of racial discrimination in employment is a different unlawful act
from the unlawful act of retaliation for having engaged in a safety- or security-
related whistleblowing activity.
Section 20109(f)’s language does not support the conclusion that the
election of remedies provision applies to all potential statutory claims, including
very disparate types of claims, arising out of the adverse action that gives rise to a
FRSA whistleblower claim. If Congress had meant the election of remedies
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19
provision to bar employees from challenging an adverse action based on different
types of statutory claims, Congress would not have used the language “same
allegedly unlawful act.” Congress could have barred employees from seeking
protection under FRSA and another statute for “the same act,” “the same
unfavorable personnel action,” or “the same discharge, demotion, suspension,
reprimand, or any other discrimination.” It did not. Congress chose to bar an
employee from “seek[ing] protection under both this section and another provision
of law for the same allegedly unlawful act. . . .” 49 U.S.C. 20109(f) (emphasis
added).
The district court below viewed the “same allegedly unlawful act” as
Norfolk Southern’s six-month suspension of Lee. See App. 623; see also Sereda v.
Burlington N. Santa Fe R.R., No. 4:03-cv-10431, 2005 WL 5892133, at *4 (S.D.
Iowa Mar. 17, 2005) (stating that FRSA’s election of remedies provision (under
the pre-2007 version of the statute) “is addressed not to the character or motivation
of the employer’s allegedly unlawful act, but to the act itself,” such as a
discharge).12
However, interpreting “the same allegedly unlawful act” as merely
12
Sereda’s statement regarding the scope of FRSA’s election of remedies
provision was incorrect. Like the current version of FRSA’s whistleblower
protection provision, the pre-2007 version distinguished between an adverse action
taken against an employee and a violation of the statute by making clear that a
violation “involves” a discharge, suspension or other action but also requires a
showing that the adverse action was in retaliation for safety-related protected
activity. See 49 U.S.C. 20109(c) (2005), amended by Implementing
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20
the adverse action, as the district court did, reads the term “unlawful” out of the
statute.
The title of section 20109(f), “Election of remedies,” further confirms that
the section is narrow and does not bar pursuit of a FRSA cause of action by an
employee who has also sued for racial discrimination. No other provision of the
United States Code, save 6 U.S.C. 1142(e), which was passed in 2007 along with
the amendments to FRSA and modeled on section 20109(f), contains the precise
title and wording of section 20109(f). However, the term “election of remedies” is
commonly understood as “[a] claimant’s act of choosing between two or more
concurrent but inconsistent remedies on a single set of facts.” Black’s Law
Dictionary (9th Ed. 2009); see, e.g., Artis v. Norfolk & W. Ry., 204 F.3d 141, 143
(4th Cir. 2000) (“The doctrine of election of remedies refers to situations where an
individual pursues remedies that are legally or factually inconsistent.”) (internal
quotation marks omitted); 25 Am. Jur. 2d, Election of Remedies § 3 (“Where
Recommendations of the 9/11 Commission Act of 2007 (“If the violation is a form
of discrimination that does not involve discharge, suspension, or another action
affecting pay, and no other remedy is available under this subsection, the Board,
division, delegate, or other board of adjustment may award the employee
reasonable damages, including punitive damages, of not more than $20,000.”)
(emphasis added). Also notably, Sereda addressed FRSA’s election of remedies
provision only in dicta. The court in Sereda held, consistent with this Court’s
decision in Rayner and other case law interpreting the pre-2007 statute, that FRSA
preempted plaintiff’s state common law wrongful discharge claims. See 2005 WL
5892133, at *3-4. The court noted in dicta that its conclusion was not undermined
by FRSA’s election of remedies provision. See id. at *4.
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21
remedies sought by the plaintiff are inconsistent or repugnant, the plaintiff may be
required to elect which remedy to pursue.”). That a railroad could be found liable
for terminating an employee for race discrimination but not liable for retaliation
based on safety whistleblowing, or vice versa, are not inconsistent with each other.
By contrast, opposite findings on whether an employee was terminated for
engaging in the same whistleblowing under FRSA and a comparable whistleblower
protection statute could be inconsistent.13
B. Paragraphs (g) and (h) Support a Narrow Interpretation of Paragraph (f)’s
Election of Remedies Provision.
Interpreting paragraph (f) narrowly to apply only to comparable
whistleblower protection statutes is consistent with paragraphs (g) and (h).
13
While a finding in a race discrimination case that a railroad discharged an
employee for a legitimate reason might seem inconsistent with the possibility of a
finding that the employee was discharged for protected whistleblowing, “election
of remedies” is not the proper legal doctrine for resolving such an inconsistency.
In proper circumstances, other doctrines, such as collateral estoppel might apply to
resolve this inconsistency. See Collins v. Pond Creek Mining Co., 468 F.3d 213,
217 (4th Cir. 2006) (collateral estoppel may apply where the issue is identical to
one previously litigated, the issue was actually determined in the prior proceeding,
the issue’s determination was “a critical and necessary part of the decision in the
prior proceeding,” the prior judgment is final and valid, and the party against
whom collateral estoppel is asserted “had a full and fair opportunity to litigate the
issue in the previous forum”) (internal quotation marks omitted); Grimes, 746 F.3d
at 188-90 (in an employee’s FRSA whistleblower case, collateral estoppel did not
apply to CBA arbitration’s finding of fact that employee had been dishonest in
reporting his work-related injury, where the railroad conducted the investigation
and terminated the employee, the arbitrators only reviewed the record from that
closed investigation, and the arbitration proceeding did not afford the employee
basic procedural protections of a judicial forum).
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22
Paragraphs (g) and (h), which were added to the statute in 2007, state in bold
terms that “nothing in this section preempts or diminishes any other
safeguards against discrimination, demotion, discharge, suspension, threats,
harassment, reprimand, retaliation, or any other manner of discrimination
provided by Federal or State law” and “nothing in this section shall be
deemed to diminish the rights, privileges, or remedies of any employee
under any Federal or State law or under any collective bargaining
agreement.” 49 U.S.C. 20109(g) and (h). These sections indicate a strong
congressional intent that other federal or state statutory safeguards against
discrimination, which paragraph (g) references explicitly, not be burdened or
reduced.
Accordingly, the district court read 20109(f) too broadly. It accepted
the proposition that reading section 20109(f) to prohibit an employee from
bringing a FRSA cause of action if he has brought suit under another
employment statute does not “diminish” any employee rights or remedies
because an employee always remains free to bring a FRSA claim or another
claim, but must bring the FRSA claim first. See App. 632-33. However, as
the Seventh Circuit recognized in Reed, while forcing a choice of claims
“may not literally be a diminution of either remedy. . . it is a fine distinction”
that “sits uneasily” with paragraphs (g) and (h)’s “broad language.” 740
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23
F.3d at 426. Conversely, interpreting section 20109(f) to bar employees
only from “seeking duplicative relief under overlapping antiretaliation or
whistleblower statutes[,]” reasoned the Seventh Circuit, “fits snugly” with
paragraphs (g) and (h)’s prohibition against diminishing an employee’s
rights under federal law. Id. (emphasis added).14
C. The History of FRSA’s Election of Remedies Provision and Its Underlying
Purpose Support a Narrow Reading of Section 20109(f).
The history of FRSA’s election of remedies provision further supports the
conclusion that Congress did not intend employees to have to choose between
pursing a FRSA retaliation cause of action and a statutory employment
discrimination claim based on race. Section 20109(f) originally stated:
Whenever an employee of a railroad is afforded protection under this
section and under any other provision of law in connection with the
14
This is true even if, as the district court found, section 20109(f) directs only that
a FRSA cause of action be brought first. See App. 626-27, 633. Both FRSA and
many statutory protections aimed at preventing discrimination based on factors
other than whistleblowing require claims to be exhausted informally before an
administrative agency whose investigation and conciliation procedures are
intended to be accessible to an employee without the assistance of an attorney. See
29 C.F.R. 1982.103-.104 (describing the complaint filing and investigation
procedures for FRSA claims); see also e.g., 29 C.F.R. 1601.8, .12, .15 (describing
the complaint filing procedures for claims under Title VII and Americans with
Disabilities Act); Br. for Sec’y of Labor as Amicus Curiae in Support of Plaintiff-
Appellee at 17-19, Jones v. Southpeak Interactive Corp., No. 13-2399 (4th Cir.
June 27, 2014) (discussing the informality of the OSHA process for whistleblower
complaints under the very similar procedures in the Sarbanes Oxley Act of 2002,
18 U.S.C. 1514A). Navigating the sequencing requirements of the district court’s
reading of 49 U.S.C. 20109(f) is an extreme burden for pro se employees, and may
diminish employee rights against discrimination as a practical matter.
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24
same allegedly unlawful act of an employer, if such employee seeks
protection he must elect either to seek relief pursuant to this section or
pursuant to such other provision of law.
Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, sec.
212(d), 94 Stat. 1811, 1815 (amended 2007). Analyzing this language and the fact
that no substantive changes were intended when the language was modified to its
current form in 1994, the Reed court noted that “the original phrasing emphasizes
that one can only seek protection under a provision of law that itself affords
protection for retaliatory acts.” 740 F.3d at 425 (first emphasis in original; second
emphasis added). Because section 1981 does not afford protection for
whistleblower retaliation, an employee seeking protection under section 1981 for
racial discrimination in his employment is not seeking protection for the same
unlawful act that he is seeking protection for in his FRSA whistleblower
complaint.15
The legislative history also shows that the election of remedies provision
was aimed at preventing employees from seeking protection under other statutes
that provided similar substantive protections as FRSA’s whistleblower provision.
15
An employee can seek protection under section 1981 for retaliation for
complaining about racial discrimination. However, while the Secretary does not
believe that a claim for retaliation under section 1981 would implicate section
20109(f)’s election requirement, Lee’s section 1981 claim did not implicate
retaliation at all, and therefore even more clearly falls outside of section 20109(f)’s
election requirement.
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25
The House Representative who managed the 1980 bill, which included the election
of remedies provision, stated:
We also agreed to a provision clarifying the relationship between the
remedy provided here and a possible separate remedy under [the OSH
Act]. Certain railroad employees, such as employees working in
shops, could qualify for both the new remedy provided in this
legislation, or an existing remedy under [the OSH Act]. It is our
intention that pursuit of one remedy should bar the other, so as to
avoid resort to two separate remedies, which would only result in
unneeded litigation and inconsistent results.
126 Cong. Rec. 26,532 (1980) (statement of Rep. James Florio). Section 11(c) of
the OSH Act protects employees against retaliation for filing a complaint,
instituting a proceeding, testifying, or exercising rights provided by the statute
related to safety and health in the workplace. See 29 U.S.C. 660(c).
Thus, the election of remedies provision was originally conceived as
preventing pursuit of remedies under other whistleblower protection statutes that
provided protections similar to the protections in FRSA. The election of remedies
provision was designed to prevent pursuit of multiple causes of action arising out
of the unlawful act of retaliation for engaging in protected whistleblowing
activities regarding safety and health. As the Seventh Circuit noted, Congressman
Florio’s statement was “firmly rooted to the ‘existing remedy’ under the [OSH]
Act.” Reed, 740 F.3d at 425 n.4.16
The election of remedies provision was
16
The Secretary believes that it is significant that, while the protection of railroad
employees against race discrimination under Title VII and other statutes was well
Page 34
26
directed at preventing employees from filing whistleblower retaliation causes of
action under a different statutory scheme covering the same protected activity.
The legislative history and context of FRSA do not suggest that Congress
intended the election of remedies provision to preclude a railroad whistleblower
from pursuing a remedy for retaliation based on his or her safety complaints and
any other statutory claim that arises out of the same adverse action, including a
race discrimination claim. The purpose of FRSA has always been “to promote
safety in every area of rail operations.” 49 U.S.C. 20101. This Court indicated in
Rayner that, “[a]s with all safety legislation, [FRSA’s whistleblower provision]
should be broadly construed to effectuate the congressional purpose.” 873 F.2d at
63. “FRSA was meant to protect railroad employees who are harassed,
discriminated against or discharged by their employers for reporting safety
violations” and to ensure that “[s]uch ‘retaliatory actions by employers [were] not
to be tolerated in the workplace.’” Id. at 64 (quoting See H.R. Rep. No. 96–1025,
reprinted in 1980 U.S.C.C.A.N. 3830, 3832, 3840, 1980 WL 13014).
established in 1980 when FRSA’s whistleblower provision was enacted, see, e.g.,
Norman, 414 F.2d at 82-83 (recognizing that Title VII’s protections against race
discrimination apply to railroad employees), Congressman Florio’s statement
singled out section 11(c) of the OSH Act’s protection against retaliation for safety
and health whistleblowing as the intended target of the election of remedies
provision. The OSH Act, which has no private right of action and is enforced only
by the Secretary of Labor, is certainly less well-known than other employment
statutes such as Title VII.
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27
In short, by enacting FRSA’s whistleblower protections, Congress intended
that “[r]ailroad employees would no longer ‘be forced to choose between their
lives and their livelihoods.’” Id. (quoting 1980 U.S.C.C.A.N. at 3832). This
backdrop of sweeping protection for safety whistleblowing weighs against reading
FRSA’s election of remedies provision to preclude a FRSA claim if the employee
has also pursued statutory claims unrelated to retaliation for reporting safety
concerns.
Interpreting FRSA’s election of remedies provision to prohibit an
employee from bringing a FRSA action if the employee previously pursued
an action under section 1981 or another federal statute unrelated to safety
whistleblowing fits even less comfortably with the 2007 amendments to
FRSA, which were designed to increase protection to railroad employees
who report safety concerns. See Ratledge, 2013 WL 3872793, at *15 (citing
H.R. Rep. No. 110-259). Such an interpretation could force employees to
choose between seeking protection under the discrimination statute or under
FRSA. This could result in fewer FRSA actions and potentially insulate rail
carriers from being held accountable for retaliatory conduct, which would be
contrary to Congress’ stated intention. Cf. id. at *15 (explaining that forcing
employees to choose between pursuing arbitration under a CBA and a FRSA
claim is contrary to the express purpose of the 2007 amendments to FRSA).
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28
CONCLUSION
For the foregoing reasons, the district court’s decision should be reversed.
Respectfully Submitted,
M. PATRICIA SMITH
Solicitor of Labor
JENNIFER S. BRAND
Associate Solicitor
WILLIAM C. LESSER
Deputy Associate Solicitor
MEGAN E. GUENTHER
Counsel for Whistleblower
Programs
s/ Rachel Goldberg____
RACHEL GOLDBERG
Senior Attorney
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room N-2716
Washington, D.C. 20210
(202) 693-5555
Page 37
29
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
29(d) and 32(a)(7)(B) because it contains 6,958
words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5), and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in proportionally spaced typeface, using Microsoft Word 2010
utilizing Times New Roman, in 14-point font in text and 14-point font in footnotes.
s/ Rachel Goldberg____
RACHEL GOLDBERG
Attorney
Page 38
CERTIFICATE OF SERVICE
I certify that the brief for the Secretary of Labor was served electronically
through this Court’s CM/ECF filing system to all counsel of record on this 29th
day of December, 2014:
s/ Rachel Goldberg____________
Rachel Goldberg
Attorney
U.S. Department of Labor
Office of the Solicitor
Room N2716
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202) 693-5555
